Genocide and Crimes Against Humanity

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 13th September 2018 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I thank my noble friend Lord Alton for all that he has done over the years in this most tragic field, the field of man’s inhumanity to man. I became particularly concerned in this area in 2002, when the ICC was created under the Rome statute and I was privileged to be one of the committee of five charged with responsibility for recommending a UK judge to that court. As it happened, a judge now on the Court of Appeal last year was appointed the chief Investigatory Powers Commissioner under our own recent security and terrorism legislation.

My involvement, so far as I had any in the field of international crime, has generally arisen in the context of asylum claims. They were usually claims of refugee status brought by those actual or threatened victims of such crimes abroad, but occasionally, and altogether more problematic, cases falling under Article 1F(a) of the convention, which excludes from entitlement to refugee status anyone who has committed or is otherwise responsible for one of the crimes against humanity or other such grave international crimes. They can raise difficult points as to the precise nature and extent of an individual asylum seeker’s involvement in a terrorist group—for example, one such case involved a Tamil Tiger—and whether they are properly to be regarded as disqualified from the safe haven to which they would otherwise be entitled.

I mention the problematic nature of those cases in contrast to the comparatively straightforward nature of the core question which underlies today’s debate. It is a comparatively straightforward question whether the string of undoubted atrocities committed by ISIS/Daesh—committed over recent years and continuing today in Syria and Iraq—constitute in law the crime of genocide, a crime of universal jurisdiction. It seems to me all too obvious that these atrocities, so consistently and convincingly described and documented over the years, amount to genocide.

I find it entirely unsurprising that it has been explicitly so characterised by a range of political bodies, including the US House of Representatives and Secretary of State John Kerry, the Parliamentary Assembly of the Council of Europe, the European Parliament and, of course, our own House of Commons. The noble Lord, Lord Hannay, has made the point that the Government are of course right to say—as they have respectfully said and continue to maintain, whenever invited to recognise these atrocities as genocide—that ultimately this is a question for legal rather than political determination and for judges and courts rather than government and parliamentary bodies. But surely, equally obviously, that is so with regard to all criminal offences—for example, murder. Yet one does not find the Government fastidiously abstaining from describing, say, the poisoning of Sergei Skripal and his daughter and the unfortunate woman who later sprayed her wrist with that substance as murder or attempted murder. Plainly, such a description and such a calling out of the offence in no way pre-empts or prejudices any final judicial determination of the issue if, as one hopes—albeit too often vainly hopes—those accused can eventually be brought before an appropriate judicial tribunal for trial.

For my part, and for the life of me, I can see no good reason why our Government should resolutely continue to refuse recognition of these atrocities for what they are, particularly when, as I understand the position, it tends to lead to Catch-22 and to the “circular argument” or “stalemate” referred to by Fiona Bruce during the April 2016 Commons debate—Hansard col. 959—whereby the UK is declining as a state party to the Rome Statute to refer the situation to the ICC prosecutor with a view to initiating an appropriate prosecution in that clearly most appropriate of tribunals.

In short, although I am intrigued by my noble friend Lord Alton’s proposal, I am not yet persuaded of the need for some domestic statute to provide for some judicial declaration in our courts by one of our own judges as a precondition for referral to the ICC. I have time for no more, save perhaps to recommend to any of your Lordships—in this packed House—who have not yet read it Philippe Sands’s compelling and enthralling book East West Street, which deals with the origins of this still all too relevant and prevalent crime.